Daniels and Harris

[2017] FamCA 212

FAMILY COURT OF AUSTRALIA

DANIELS & HARRIS [2017] FamCA 212

FAMILY LAW – CHILDREN – PARENTING

APPLICANT: Ms Daniels

RESPONDENT: Mr Harris

INDEPENDENT CHILDREN’S LAWYER: Ms Burgess

FILE NUMBER: WOC 723 of 2012

DATE DELIVERED: 3 April 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 3 April 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Cameron

SOLICITOR FOR THE RESPONDENT: Ms Gaetani

Orders

Accordingly, it is ordered:

1. That I discharge the previous orders for the father to spend time with C.

2. That the child, C, born … 2005, (“C”) live with the mother.

3. That C spend time with the father each second Sunday from 11am to 5pm commencing Sunday 9 April 2017 with such time to be supervised by Ms D and or Mr G and or Mr Daniels or such other persons as may be agreed in writing between the parties.

4. That no less than seven days prior to each scheduled visit the father shall notify the mother by sending a text message to Mr Daniels, details of the venue where the father nominates to spend time with C.

5. That the father shall communicate with C by telephone every Wednesday at 6:30pm with the father to call the mobile phone of Mr Daniels.

6. That the father share equally in the costs of C’s attendance upon Dr F, or such other agreed counsellor for C.

7. Pursuant to s 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report.

8. The Family Consultant is granted leave to inspect all documents produced in these proceedings on subpoena.

9. The Court notes that it will facilitate the re-listing of the matter as soon as practicable after the release of the Family Report.

10. That the parties will prepare an agreed Terms of Reference for the preparation of a Family Report within a period of fourteen days of today’s date with the Independent Children’s Lawyer to provide an initial draft to the parties within seven days of today’s date. 

11. I grant liberty to the Independent Children’s Lawyer to relist the matter on 48 hours’ notice in relation to the settlement of the Terms of Reference. 

IT IS NOTED THAT

1. The Terms of Reference are intended by the parties to incorporate an ability of the Family Consultant to liaise with Dr F.

IT IS FURTHER ORDERED THAT

1. The mother provide an authority directed to Dr F to allow or at least to make it clear to Dr F that she is allowed to communicate with the father about C.

IT IS FURTHER NOTED THAT

1. Ms H, Family Consultant at the Canberra Registry, prepared a previous report in relation to C and the parties agree that, if possible, Ms H should prepare the Family Report.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daniels & Harris has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: WOC 723 of 2012

Ms Daniels

Applicant

And

Mr Harris

Respondent

REASONS FOR JUDGMENT

1. This matter concerns the parenting arrangements for C, who turned 12 recently, who is a boy who has special needs. 

2. The orders that are currently in place provide for him to spend time with his father each second Sunday and were expressed to transition from supervised to unsupervised time following the father completing a positive partnerships workshop to assist him to parent in the context of C’s special needs.  Despite the orders providing for that transition, both parties accepted that it was not appropriate to move to the unsupervised time because of the anxiety that C was showing.  The parties cooperated in engaging Dr F to provide some information to them about how to deal with C’s behaviours in the context of spending time with his father.  That cooperation meant that the father did not insist on compliance with the orders that meant that the time was to be unsupervised. 

3. The scope of the dispute between the parties before me by the end of the proceedings today revolved around whether or not C’s time with his father should be occurring on a monthly basis or a fortnightly basis.  Both parents have agreed that it should be supervised at this point.  That agreement that it should be supervised marks a change from the position that the father pursued at the beginning of the proceedings.  At the beginning of today’s proceedings he was seeking again that there be a transition to unsupervised time but readily conceded that the matter should remain supervised pending the preparation of a Family Report.

4. The parties both agree that the preparation of a Family Report will be of assistance in determining how to manage changes for C.  Each of the parties directed their arguments towards a particular primary consideration.  That is, each of them thought that the resolution of this matter is to be determined by the managing of a meaningful relationship between C and his father.  They each have different perspectives as to how that might be achieved but each of them in presenting a case before the Court was looking to facilitate the meaningful involvement of the father in C’s life to the maximum extent consistent with C’s best interests.

5. For the father, the position of asking for fortnightly time to continue was based upon trying to maintain a frequency by which the relationship might be maintained and developed.  His concern with a move to monthly time was that if C was unable to attend on one occasion, which is a matter which could be quite likely should C feel anxious about attending, that would mean that he might not see C for an eight week period after having transitioned to fortnightly time under the previous orders. 

6. The mother’s perspective was that she wishes to minimise C’s anxiety in spending time with his father out of concern that if C’s anxiety becomes too severe it will undermine his relationship with the father.

7. The Independent Children’s Lawyer’s position was that a fortnightly frequency was preferable to the monthly frequency, in particular to ensure that there are not significant gaps in the time that C is to spend with his father. 

8. Unfortunately there is no clear answer as to which of these regimes promotes the best prospects for C.  It seems uncontroversial that C is suffering from anxiety in relation to spending time with his father and that this anxiety has occurred in the context of the upcoming transition of his time to unsupervised time.  It is not crystal clear that that was a causative factor but it is clear that that is the context in which it has occurred.  It is also clear that the parties have cooperated with Dr F in terms of management of C.  That cooperation has caused the father to forego the unsupervised time. 

9. Dr F’s report was annexed to the mother’s affidavit.  Having read the report I pay particular attention to pages 20-22 of the annexures which commence with Dr F’s summary and opinion.  That summary and opinion describes changes which have been happening to C in respect of his anxiety.  They include an increased anxiety and an increased risk of self-harm connected to that anxiety.  Dr F is circumspect as to what the causes of this might be and how it might or might not relate to parental ability to manage C. 

10. Dr F went on to make recommendations as to how the manage that anxiety.  I note that the material from Dr F is at present untested.  It does seem to be accepted by the parties as correct in so far as it expresses that C is suffering from anxiety. 

11. At [17] of the report Dr F set out a number of matters which she thought would be helpful to managing C’s anxiety.  Many of those have been adopted by both the mother and father as being appropriate for the ongoing time that C is to spend with his father. 

12. The first of the recommendations was to continue supervision that is sought by the mother and accepted by the father, at least until the preparation of the Family Report. 

13. The second recommendation is that the visits be used as an opportunity to work on establishing a strong and secure father/son relationship requiring an understanding by Mr Harris of C’s autism and how to adjust his parenting styles.  I note that the father has recently completed a course directed to this. 

14. The third recommendation is for there to be regular phone or Skype communication between visits.  The parties agree that this should occur.  The mother in her orders seeks that it happens once a week.  The father accepts that this should occur.  The particular recommendation made by Dr F was no fewer than three additional communications and she expressed that that should be over the fourteen day pattern.  That is, the recommendations seem to be predicated on the notion that C will be spending time with his father each fourteen days.

15. The fourth recommendation is that actions be taken to reduce uncertainty and provide a more regular routine for C, in particular as to what is to happen during the visits.  The mother has made a suggestion in her application which is adopted by the father that no less than seven days prior to each scheduled visit the father shall notify the mother the details of the venue where he nominates to spend time with C.  This I take it will enable the mother to talk to C about what is to happen well in advance of when it is to happen so that C might have certainty knowing what it is that he will be doing with his father. 

16. The fifth is that there be graded and gradual approaches to changes in plans and routine to allow C time to adjust emotionally and psychologically to such changes.

17. The sixth was that there be a child centred focus by all parties to ensure C is not witnessing conversations about what may or may not happen in the future.  This will require some care particularly on the part of the father in how he talks about what could happen in the future with C.  Dr F appears to be clear that it is not a matter to be of discussion during C’s time with his father, at least that is what I infer from [f].

18. The seventh recommendation relates to communication between parties regarding C’s concerns and anxieties and a willingness to offer him alternatives to meet the intent of orders while not placing him under unnecessary stress.  This appears to be a matter that the parties have adopted for themselves.  They have cooperated in terms of using Dr F and in a willingness to forego time with C when it has been communicated to the father that C cannot take part in the time with his father. 

19. The eighth is a co-parenting relationship course.  That does not seem to be a mater which is able to be dealt with on an interim basis. 

20. On the basis that C has been, at least in the recent past, generally spending fortnightly time with his father, on a supervised basis, and on the basis that the various protections suggested by the mother including ensuring the regular communication time by telephone with C and ensuring that C is aware well in advance of what the arrangements will be and in the continuing use of supervised time, it seems that on balance retaining a regime of fortnightly time for C is the most appropriate in terms of dealing with his anxiety.  I acknowledge that there are uncertainties in this.  The material before me has not been tested.  It is unclear how this might function but, given the recommendations made by Dr F, it appears appropriate to retain the fourteen day cycle.  One of the reasons that I am able to do this is because of the manner in which the father has previously responded in not forcing time with C when it was apparent that C was too anxious to spend time with him. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 3 April 2017.

Associate: 

Date:  6 April 2017